Slightly off the mainstream of employment law scholarship is Margaret Lemos’sInterpretive Methodology and Delegations to Courts: Are “Common-Law Statutes” Different. This is a terrific, creative piece in only 14 pages. I am especially pleased to be able to highlight it on Jotwell because it will appear in a chapter entitled Intellectual Property And The Common Law (Shyam Balganesh ed., Cambridge University Press, 2012), and therefore might well be missed by most employment law types.

Professor Lemos starts with a commonplace of statutory interpretation, asks why, and comes up with answers that make one reconsider fundamental beliefs. What more could one ask?

The commonplace is that the normal methods of interpretation (whatever they happen to be at the time) are inapplicable when it comes to “common law statutes.” The paradigmatic example of such a statute is the Sherman Act, which is generally viewed as an enabling act — an authorization by Congress to the courts to create jurisprudence of “restraint of trade” largely unconstrained by common law precedents, textualist fussiness, or any need to discern legislative intent. In contrast, “normal” statutes, such as Title VII, are subject to a process of “statutory interpretation,” which these days requires an elaborate parsing of words in order to determine what the enacting Congress intended by the language it chose.

“Common law statutes,” in short, are viewed as delegations of law-making power to courts, a perspective with a number of implications. One is doubt about whether what has been called the “superstrong” version of stare decisis usually applicable to statutory interpretation ought to apply. Common law courts are normally thought to be able to overturn or modify their precedents when appropriate without assuming that legislative acquiescence indicates approval, and that would seem to be true of common law statutes.

Another implication arises from the relationship between delegations to the courts via such statutes and delegations to agencies under Chevron. Professor Lemos argues that, under Chevron, “statutory ambiguity is ‘agency-liberating’ in the sense that it converts the administrative inquiry from a search for what the statute means to a determination of what it ought to mean.” This is also true, in her view, for “common law statutes,” but not so for “normal” statutes. Professor Lemos therefore asks why statutory ambiguity – wherever it might be found — doesn’t create a like authority for the courts.

Another way to frame this basic question is, what makes a particular enactment a “common law statute?” Professor Lemos concludes that the two usual justifications – open-ended text and common law background — are wholly inadequate. Take open-ended text. It’s not that some statutes aren’t more open-ended than others but, rather, that all statutes have open-ended aspects that could be viewed as a delegation by Congress to the courts to fashion common law-like rules. For example, “restraint of trade” may be undefined in the Sherman Act, but “discrimination” is also undefined in Title VII. Recognizing this would permit the courts more leeway to generate policy rules without departing from their role of implementing congressional commands – the command would be, in this case, to define “discrimination” in the traditional common law manner. As for common law background, the Sherman Act builds on common law notions of restraint of trade, but Title VII would not exist but for its common law foundation in the notion of “employment,” and the courts regularly draw on common law concepts for concepts such as causation (including, most recently, proximate cause).

In short, Professor Lemos argues that “neither of the proposed distinctions is persuasive, as the relevant features are shared by many other statutes that do not appear on the privileged list.” Rather than reflecting categorical differences, statutes exist on a continuum with most laws having some aspects of what are typically viewed as common law statutes.

Professor Lemos does not cite the decision, but a good test case for her ideas is General Dynamics Land Systems. v. Cline, 540 U.S. 581 (2004), which asked whether the ADEA’s prohibition of age discrimination barred discrimination favoring older workers within the age 40+ protected class vis-a-vis younger workers also within the protected class. The majority held no, but it struggled with the language of the statute, which the majority found capable of either barring age discrimination against anybody over 40 or barring only discrimination against older workers within that group. Ultimately, the majority chose the latter meaning because of a number of “interpretive clues” in the statute, its legislative history, and what the majority called the “social history” of the law. The dissent (authored by Justice Thomas and joined by Justice Kennedy) would have adopted the broader meaning of discrimination because of the “plain language” of the statute; it also condemned the use of “social history,” which it labeled “the Court’s new approach to interpreting anti-discrimination statutes.” Then there was Justice Scalia’s dissent, which relied heavily on the EEOC’s interpretation.

While the Court might well have reached the same result in Cline had it viewed “discrimination” through a common law lens, the result would certainly have been very different opinions, and ones that might have better come to grips with the policy question undergirding the semantic debate – should older workers be favored?

For the author, the fact that statutes exist on a continuum means we should reconsider the sharp line we now draw between “normal” and “common law” enactments. We should focus instead on the real institutional questions posed by any statute: whether there is a delegation to courts of law-creation power and whether the courts are institutionally competent to resolve these questions. Thus, she asks whether the patent system is well left to the courts and whether, given the complexities of economic analysis, the courts are the appropriate body to fashion antitrust policy.

Closer to the employment law setting, she also points out that the antidiscrimination laws might be better suited to a common law approach: “with no agency presently empowered to play a strong role in the interpretation and implementation of Title VII, the practical need for judicial policymaking is at least as strong as in the fields of patent and antitrust.”

Hard to disagree with that! Of course, and without too much of a quibble in what is after all, a Jotwell post, one wonders exactly what kind of public policy would emerge from a Court newly-freed of constraints in interpreting the antidiscrimination laws.